EPLAW PATENT BLOG

DE – Direct patent infringement of combination patents and recall from abroad

Posted: November 29th, 2018

‘Beheizbarer Boden für Viehställe’, Higher Regional Court of Düsseldorf, 19 July 2018, docket no. 15 U 43/15

Direct patent infringement of combination patents and recall from obligors abroad if patent-free replacement deliveries are possible

In the above-mentioned decision, the Higher Regional Court deals with three legal aspects:

First, the Senate confirms its previous case law according to which in the case of combination patents, not only contributory but direct patent infringement is present if the offered or supplied part of a claimed entire device already shows all material features of the idea of the invention, and only an insignificant “everyday ingredient” is necessary at most for it to be completed.

Second, the Senate also confirms its previous case law according to which an obligor abroad is subject to the claim for recall as well.

Finally, the Higher Regional Court considers recall of the patent-infringing products against reimbursement of the purchase price disproportionate if the customer can be provided a patent-free product as a less severe means in exchange for the infringing embodiment.

A full copy of the report can be found here.

Reported by: Stefan Lieck and Dominik Woll, Bardehle Pagenberg


One Response

  1. […] EP Law reports on a German patent infringement case, in which the question of direct infringement of a combination patent was considered. According to German case law, a combination patent is directly (not just indirectly) infringed by the sale of a device lacking an ingredient specified in the patent claim when the extra ingredient is “insignificant”. The patent in the case in question related to floor heating system filled with a heating fluid. The alleged infringing product was supplied without the heating fluid (e.g. water). In the court’s view, a customer would fill the supplied system with water, and the water could be considered an insignificant ingredient of the invention. The patent was thus found to be directly infringed: Direct patent infringement of combination patents and recall from abroad.  […]

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